NICK EICHER, HOST: Coming up next on The World and Everything in It: judges and the rules they live by.
Now, all practicing attorneys are guided by rules of professional conduct. For judges, though, special ethical considerations apply. For example, are they allowed to serve on governing boards? Are they permitted to raise funds for charitable groups?
Recently, judges received some possible guidance on questions like those and others. It’s in the form of a draft advisory opinion, and it comes from the U.S. Judicial Conference Committee on Codes of Conduct. That’s the group that frames policy guidelines for the administration of the court system.
MARY REICHARD, HOST: The committee’s latest policy proposal discourages membership in certain law-related organizations.
Judges, their clerks, and staff attorneys are advised against joining groups like the conservative Federalist Society or the liberal American Constitution Society.
Sounds neutral. But is it really? WORLD Radio correspondent Katie Gaultney reports.
KATIE GAULTNEY, REPORTER: The committee that proposed the rule said it wanted to prevent political action on the part of judges—maintain impartiality. But lawyer Carrie Severino of the Judicial Crisis Network says that’s likely a thinly veiled attempt to quash conservative and libertarian ideals.
SEVERINO: What looks to me like really it’s a politically motivated effort to get judges out of the Federalist Society.
The Federalist Society is dedicated to the philosophy of limited government and an originalist interpretation of the Constitution. And it’s become increasingly influential during the Trump administration: A majority of the appeals court judges appointed by the president are Federalist Society members.
If the concern is about organizations lobbying, carrying out grassroots activism, or filing amicus briefs…
SEVERINO: All of those things are things the Federalist Society does not do. It creates a false equivalency too. Cause it says, well, you can’t be members of either them or the American Constitution Society, a liberal group. That group does do all those things. So it’s a really false equivalency.
It’s also selective in which groups it targets. Under the proposed policy, membership in the American Bar Association is just fine. The ABA is arguably more political than either the Federalist Society or the American Constitution Society. And it leans left.
Severino says she thinks it’s fine for lawyers to belong to bar associations. But she argues all such memberships should be allowed.
SEVERINO: I think it’s, it would be shocking and it very much out of keeping with American tradition to say that judges now aren’t able to take part in any of those civic organizations, in fact, contrary to the code of conduct itself, which encourages judges to take part in civic life, to bring their knowledge and expertise on the law into all these areas.
In 2006, the same ethics committee advised that the Federalist Society is not a political organization because it’s non-partisan and doesn’t direct support to specific candidates. But that was before so many society members started getting judicial appointments.
Severino says the political ideologies of the judges on the committee may be behind this proposal: Over half the committee’s members were appointed by Democratic presidents.
She says it’s also worth evaluating how democratic this process is—or isn’t.
SEVERINO: So you know, when there are people who are concerned sometimes about, um, judges who have not ever been elected legislating to the bench, this is several steps removed from it. This is judges legislating what the other judges can do and sometimes judges who’ve never even been appointed by anyone elected by the American people, um, having a voice in it.
Word of the proposal spread quickly. Supreme Court Justice Clarence Thomas spoke at a Federalist Society conference in Florida over the weekend. He joked that certain elements within the government are trying to “silence the Federalist Society,” so he wouldn’t be able to address its members again.
John Sullivan leads the group’s Dallas chapter. It counts judges and clerks among its ranks and often hosts judges for speaking engagements. He says its goal is more informed, better equipped lawyers.
SULLIVAN: But that if you’re, if you’re telling judges that they can’t come, then that we do lose that not just networking aspect but also kind of the mentorship aspect of having judges that, that come in and speak to student chapters at the law schools. You lose that mentorship teaching aspect that the judge would bring as well.
Sullivan says bright law students who aspire to become clerks gain a lot from Federalist Society membership. But they might hesitate to join the organization for fear that what has historically been an advantage might turn into a black mark on their resume.
Right now, the proposed rule is undergoing internal discussion in committee. That process will take 120 days and conclude on May 20. Severino said the rule is already under so much scrutiny, if implemented, it’s sure to face challenges.
SEVERINO: We can’t have a committee that’s a part of the, the administrative office of the courts behaving in such a blatantly political manner that’s really bad for the, the impression that people have of the integrity of the courts. But I think if you, if you did see it implemented, you probably have a lot of court challenges to it immediately cause there’s real questions as to whether it could withstand First Amendment scrutiny.
Chief Justice John Roberts supervises the Judicial Conference. And the proposed rule is personal: He belonged to the Federalist Society for one year in the late 1990s.
Roberts has had a busy few weeks on Capitol Hill. But when that wraps up, he’ll likely have a new political controversy waiting for him to address.
Reporting for WORLD Radio, I’m Katie Gaultney.